Hines v Stock

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[*1] Hines v Stock 2022 NY Slip Op 51114(U) Decided on November 16, 2022 Supreme Court, Bronx County Capella, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 16, 2022
Supreme Court, Bronx County

Shauna Hines, Plaintiff,

against

Dr. Mary Stock, M.D., and WALGREEN COMPANY, Defendants.



Index No. 22022/16


Plaintiff's Attorney
John Hunt, Esq.
Assistant Attorney General
28 Liberty Street, 18th Floor
New York, New York 10005
(347)712-0931

Dr. Stock's Attorney
Katherine M. McGrath, Esq.
Kazmierczuk & McGrath
103-16 Metropolitan Avenue
Forest Hills, New York 11375
(718)441-5460 Joseph E. Capella, J.

The following papers numbered 1 to 3 read on this motion submitted on May 27, 2022.


PAPERS NUMBERED

NOTICE OF MOTION AND AFFIRMATION 1
ANSWERING AFFIDAVIT 2
REPLY AFFIRMATION 3

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:

Motion by defendant, Mary Stock, M.D., for summary judgment (CPLR 3212) and dismissal of the instant medical malpractice action is granted. On October 3, 2013, plaintiff, a sophomore at the University of Buffalo, met with Dr. Melinda Haggarty at the school's Counseling Services. Dr. Haggarty's impression was general anxiety, and she instructed plaintiff to see Dr. Stock. On October 8, 2013, plaintiff was evaluated by Dr. Stock, who diagnosed plaintiff with generalized anxiety disorder and major depressive disorder, and prescribed 50 [*2]milligram tablets of sertraline. The bill of particulars alleges that Dr. Stock was negligent in dispensing sertraline in an improper dosage and to an inappropriate individual, failed to refer plaintiff to a physician for psychological treatment, failed to take a proper history, failed to conduct a physical exam and failed to inform plaintiff of the medication's side effects. It further alleges that on January 8, 2014, as a result of the aforementioned negligence, plaintiff fell in a New York City subway station and was struck by a train.

The initial burden is on the movant, Dr. Stock, to make a prima facie showing of an entitlement to summary judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 NY2d 320 [1986].) If she does, then the burden shifts to plaintiff to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial (Alvarez, 68 NY2d 320), and denial of summary judgment. In support of the motion is an expert affirmation from Dr. Matthew Majeske, who is a board certified Diplomate of the American Board of Psychiatry and Neurology. According to Dr. Majeske, the evidence indicates that plaintiff was suffering from mild to moderate depression and anxiety, and that Dr. Stock's evaluation, diagnosis and treatment were in accordance with standard medical practice. Dr. Majeske states that when sertraline or other anti-depressant/anxiety medications are prescribed by an internist, family medicine practitioner, pediatrician, or OB/GYN, the prescribing physician is not required to perform the exact same type of diagnostic work up that might be preformed by a psychiatrist.

Dr. Majeske opines that the history obtained by Dr. Stock was adequate for the purpose of determining whether plaintiff was a suitable candidate for anti-depressant medication. He states that standard medical practice did not require a physical exam before prescribing sertraline, nor is there any evidence in the records that a physical exam would have uncovered information that would have made sertaline inappropriate. According to Dr. Majeske, a 50 milligram dosage comported with standard medical practice, and the risks and benefits were discussed with plaintiff. He goes on to state that Dr. Stock was not required to refer plaintiff to any physician, especially in light of the fact that plaintiff had been to the Counseling Services five days earlier and was given a return appointment for October 11. Dr. Majeske notes that by November 16, 2013, nine days after plaintiff took her last tablet, all of the sertraline would have been eliminated from her body, making it impossible for the sertraline to have caused plaintiff's accident on January 8, 2014. Based on the aforementioned, the court is satisfied that Dr. Stock met her burden for summary judgment, (Zuckerman v City of NY, 49 NY2d 557 [1980]; Kaffka v NY Hospital, 228 AD2d 332 [1st Dept 1996]), which now shifts to plaintiff to demonstrate that issues of fact exist regarding same.

In opposition, plaintiff provides an expert affirmation by Dr. Margaret Kearns-Stanley, who is board certified with the American Board of Family Medicine. According to Dr. Stanley, Dr. Stock deviated from good and accepted standards in that she failed to take a complete history of plaintiff. Dr. Stanley states that when evaluating a patient for anxiety disorder, it is important to rule out other medical conditions that can mimic anxiety such as hyperthyroidism, or the use/misuse of alcohol or other illicit substances. Plaintiff's expert states that "[a]lcohol use and abuse are common in college students as well with 51% reported that within the previous 12 months they experienced some negative consequences associated with their alcohol consumption." She goes on to state that "[f]or these reasons screening for alcohol use and [*3]misuse as well as other illicit substances is important particularly in college students . . . [and] [e]valuating a college student for anxiety and depression is incomplete without a complete social history, including social supports, alcohol use, illicit drug use, prescription drug use and tobacco use." Dr. Stanley concludes that Dr. Stock's failure to take a complete history was the proximate cause of plaintiff's injuries.

In opposing defendants' motion, plaintiff's expert is obligated to address the specific assertions made by defendant's expert. (Lowe v Japal, 170 AD3d 701 [2nd Dept 2018].) Completely devoid from Dr. Stanley's affirmation is any reference to plaintiff's allegations regarding the prescribing of sertraline, let alone Dr. Stock's discussion of same. Here, Dr. Stanley does not challenge Dr. Stock's diagnosis of generalized anxiety disorder and major depressive disorder. Nor does Dr. Stanley address the lack of any alcohol or drug abuse finding by Dr. Haggarty at the school's Counseling Services. Dr. Stanley does not cite to any of plaintiff's medical records where alcohol or drug abuse might be suggested. Instead, Dr. Stanley raises a single departure, and that is an alleged failure to take a proper history in order to reveal what Dr. Stanley suggests (emphasis added) might be an underlying alcohol or drug problem. But nowhere does Dr. Stanley allege that plaintiff actually had an alcohol or drug problem, nor does she allege that Dr. Stock failed to diagnose plaintiff with same. Moreover, plaintiff's complaint and bill of particulars makes no reference to an alleged failure to diagnose plaintiff with a possible alcohol or drug problem, and this new theory cannot be raised for the first time in a summary judgment motion. (Biondi v Behrman, 149 AD3d 562 [1st Dept 2017].) Even viewing the evidence in a light most favorable to plaintiff, (O'Sullivan v Presbyterian, 217 AD2d 98 [1st Dept 1995]), the Court is satisfied that Dr. Stanley's opinion is conclusory, speculative and unsupported by the record. (Choida v Schirripa, 188 AD3d 978 [2nd Dept 2020].) Given the aforementioned, Dr. Stock's motion for summary judgment is granted, the instant action is dismissed, and the clerk is directed to enter judgment in defendant's favor accordingly. Dr. Stock is directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 20 days of receipt of copy of same.

This constitutes the decision and order of this court.

Dated 11/16/22

Hon.________/S/_____________
Joseph E. Capella, J.S.C.